LA Times Barred From Publishing Photo Of Murder Suspect

from the prior-restraint dept

It seems that judges are becoming less and less concerned with the First Amendment lately. Apparently, a California judge barred the LA Times from publishing a photo it took of murder suspect Alberd Tersargyan. The judge had initially allowed a photographer from the LA Times to snap some photos of Tersargyan during a pretrial proceeding. However, his lawyers protested that these photos could take away his right to a fair trial... and the judge agreed. The newspaper appealed, and now a California appeals court has held off ruling on the issue for at least a week. The LA Times, for obvious reasons, finds this troubling. This isn't the first time we've seen similar things either. Last year, in New York, a judge considered barring a newspaper from showing photos of a local politician in handcuffs, saying it might bias the jury. However, previous First Amendment rulings seem to make it pretty clear that publishing such photos is perfectly legal.

Wait What?

"photos could take away his right to a fair trial"

Exactly how on earth could a photograph of 'a pretrial proceeding' (presumably The LA Times was not planning on doctoring the image) possibly affect the outcome of his trial? Was he covered in blood? Was he wearing a "I am a killer" t-shirt?

Re: Wait What?

"Exactly how on earth could a photograph of 'a pretrial proceeding' (presumably The LA Times was not planning on doctoring the image) possibly affect the outcome of his trial? Was he covered in blood? Was he wearing a "I am a killer" t-shirt?"

A humorous image to be sure, but to be fair, in the times of daily Law & Order and CSI marathons, the image of someone just appearing in court is probably enough to affect public opinion. I mean, how often in media (entertainment in particular) are the defendents in a trial portrayed sympathetically? This, of course, is not to say that the answer is to trample press privelages, but let's realize that there is an effect taking hold on people in our country as the result of one very scary movement: nationalism.

What you have is a complicit media that is constantly protraying authority as complete good. I'm always amazed at how some of the tougher characters on L&O (why is it always the men?) are shown engaging in questionable activities, bending the rules, etc., and fans of the show CHEER them on. Maybe my Anti-Authority chipset has more cores than most, but half the time I'm rooting for the criminals on those shows....

If he's in pretrial confinement, then yes, it would be at least prison garb, and maybe handcuffs. It's only human nature to assume guilt when seeing someone so attired, even if it's just a subconcious thought.

So they won't show a suspected murder's picture but have no issue with a suspected pedophile?

Can anyone explain to me why it is acceptable to post a guy's photo all over the news proclaiming him to be a suspected pedophile but don't publish a suspected murderer's photo? Either way the suspect's life is ruined even if proven innocent/not guilty. Is there a reason why the identity of both parties in a legal case aren't just held until after the outcome of the trial?

Re: Re: Wait What?

I'm not sure which L&O you have been watching, but Lenny Brisco was always a straight shooter and several of the detectives have been in hot water for doing things that were questionable - except Ice T, who is clearly so bad-ass that he can do whatever he wants (except in the original L&O episode in which he was a pimp that got killed).

I know public perception is important, but the hairs stand up on the back of my neck when someone suggests that television shows like this are impacting court proceedings (re-read your post).

Normally, I agree with you, but in this case, I do not think the media has much to do with it. Lots of people have always made the assumption that the guy in the defendant's seat was probably guilty. I think the media today has done the opposite of what you are saying - it has (at least slightly) degraded the societal belief that our law enforcement is looking out for our best interests and can be trusted. It seems easier than ever to get people to believe that police have planted evidence or have botched something in their investigation.

Re: Re: Re: Wait What?

"I'm not sure which L&O you have been watching, but Lenny Brisco was always a straight shooter and several of the detectives have been in hot water for doing things that were questionable - except Ice T, who is clearly so bad-ass that he can do whatever he wants (except in the original L&O episode in which he was a pimp that got killed)."

Two words: Elliot Stabler....

"I know public perception is important, but the hairs stand up on the back of my neck when someone suggests that television shows like this are impacting court proceedings (re-read your post)."

Hmm, sorry, but I think you might have missed the boat on this one, although given how little it's reported on that is understandable. See the link below, or simply Google "The CSI Effect" for further details....

Almost certainly an incorrect decision

This type of ban is referred to as a "prior restraint". The short answer is that a prior restraint is almost always unconstitutional. In other words, the government always loses. Moreover, Supreme Court have used a "least restrictive means" test, meaning that it is the burden on the government ordering the prior restraint to show there is no other way of asserting their state interest without the need for preventing publication. Governments invariably fail.

Re: Re: Re: Wait What?

"I'm not sure which L&O you have been watching, but Lenny Brisco was always a straight shooter and several of the detectives have been in hot water for doing things that were questionable - except Ice T, who is clearly so bad-ass that he can do whatever he wants (except in the original L&O episode in which he was a pimp that got killed)."

They may have ended up in hot water several episodes (and in some cases a season or 2) later but when those detectives (and don't even get me started on those ADAs, especially the character Diane Neal played) do something a little foul there is nearly always an immediate sense of "Its okay that I did that because ______." feeling.

Either way the suspect's life is ruined even if proven innocent/not guilty.

in this case the defendant can afford good lawyers, so he is innocent until he cops a plea for a lesser charge. if you can't afford a good lawyer you are not guilty until they throw the book at you. it's the american way.

Is there a reason why the identity of both parties in a legal case aren't just held until after the outcome of the trial?

it comes down to the quality of your legal team. this guy can afford good representation, so he will get the fairest trial that money can buy, freedom of the press be damned.

Has anyone noticed how the media convict suspects before they are even tried by portraying them in the most negative light possible? Has anyone failed to notice that the media do this purely for ratings and have no real interest in the truth nor a care about the damage they do to a possibly innocent person before that person is even tried?

Free speech and freedom of the press is all well and good as long as you are not on the receiving end of both a bogus criminal charge which you have to spend all your money defending against, which is then compounded by a slanderous/libelous campagign by the media which you will have no possibility of defending against or suing for a retraction since all your monetary resources must go toward your criminal defence.

Seriously, police should be legally required to keep their suspects and "persons of interest" private, regardless of crime committed, because all it does is convict them in the court of public opinion before the trial ever happens, thus tainting the jury pool.

The fact that a person is being tried for a capital crime, which could carry the death sentence, should allow for their privacy until convicted. This allowance should supercede first amendment rights for all other parties involved because none of the other parties involved are on trial for their very life.

Total aweful treatment of the issue

WOW!! What a in-depth analysis of two competing constitutional issues! I mean, you really nailed it Masnik. The way you drew out the pragmatic consequences of stifling the First Amendment was top notch, but then, THEN you delved into the Sixth Amendment and succinctly covered such American principles as innocent until proven guilty, and "better to let a guilty man free then send an innocent to prison." But just as I was beginning to think the Judge was correct, you tied in a historical based analysis of the purposes behind free speech: political dissension, government accountability, public welfare WHOA! And then right back on the other side, you described the current science with regards to the psychological effects of images on jury pools. I was left informed but conflicted, but you helped out by telling me what the FACTS of the case were, allowing me to pontificate on what constitutional goal would best be served given the actual situation. In no way was this piece hackneyed dribble that any one with a high school understanding of the constitution could write, who heard about the story on the Today Show, and needed to write 150 words in order to get make his word count for the day.

Freedom of the Press doesn't extend to spectacle.

First and foremost, The Press doesn't *need* a photograph in order to publish facts. I'm sure the principle would be clear if you were the one so charged: that's actually a sound indicator of common law, regardless of other times the morbid curiosity to see a photograph.

2nd, "The judge had initially allowed a photographer from the LA Times to snap some photos of Tersargyan during a pretrial proceeding." -- The judge deliberately exposed him for benefit of *one* paper. This decidedly verges on the court *aiding* the press, which is flat wrong because *may* later bias a jury. It's a mistake that's easily reversible though, by barring publication of photograph.

Re:

Re:

While it sucks that people are tried in the court of public opinion it is one of the hazards of living in a free society. We deal with these hazards so that we have our freedoms. All of the things you list do, in fact, suck for the accused however the right of the press to freely publish trumps the suck.

You may be on to something about keeping persons of interest and suspects private until an arrest is made but the onus would have to be on law enforcement with penalties for leaks on that side of the game. The press must be free to publish the information it receives or we don't have a free press.

The issue of honesty in the press is one the consumer needs to address and cannot be addressed by law. Unfortunately our society rewards the drivel that's being published so those who do care about honesty from the press are a minority that is rarely heard from.

Your last statement is completely wrong. There is very little that supersedes our first amendment rights and some of what does now is already crap. Factual reporting should never be superseded by the chance of embarrassment. The accused could sue for libel or slander depending on the method of delivery if more than the facts were presented but the press must be allowed to remain free. It sucks for the accused to be sure just like it sucks for the families of military families to have deal with Fred Phelps and his crew of disgusting douchebags at funerals but this is the way it must be if we are to have a free society. You cannot place restrictions on the press like this and still claim freedom and once you allow the restrictions to be placed you only open the door for more.

I wish the LA Times had the balls to stand up for the First Amendment and publish the picture anyway, completely ignoring the judges clearly unlawful order, so that this case would be forced to come to head immediately. The precedent is clear here and the judge has overstepped his authority. Today's press is all too eager to allow the judiciary to stifle the rights of the press. More publications need to take hard stances against this kind of abuse and the judges quite honestly need be put in their place.

There is no potential bias, LA Times should just publish.

The defense is complaining because the "alleged murder" is shown in that lovely orange jumpsuit, and that may bias some.
Firstly, I agree wholeheartedly, the First Amendment trumps the appearance of a fair trial issue here.
Secondly, who is the picture going to bias? Nobody! When the jury is selected the will know who the defendant is, and what he is accused of, it's not going to be a secret. If somebody already made up their mind on guilt or innocence, it was done when they heard the defendant was arrested; no one needs the orange jumpsuit to make up their mind.

Re: Re: Re: Re: Wait What?

"surveyed 103 adults in Tippecanoe County"

Hardly a good cross-section of the US population. Their study is a bit questionable.

I looked a bit for any studies that examined both sides and did not see anything that really examined both the increase in 'overstating criminal activity' as the article you provided discussed as well as 'overstating of law enforcement acting inappropriately'. My anecdotal experience suggests that people are much more likely to not believe law enforcement these days than they were a couple of decades ago. However, I have no real evidence to support it - it's just opinion.

I think this is another case of some studies (like the one you linked to) starting with a conclusion and then collecting the supporting evidence. However, you have opened my eyes enough on this to spend some time looking into it more - so thanks.

And yes - I agree that Stabler is a bit off-track. I'm a bit more of a fan of the old L&O.

Re: Re: Re: Re: Re: Wait What?

Yes. I liked that Diane Neal's character went outside the box but frankly I think the only reason she finally got disbarred when she did was because in particular episode the presiding judge herself caught her in a major lie.

Re: Total aweful treatment of the issue

OW!! What a in-depth analysis of two competing constitutional issues! I mean, you really nailed it Masnik. The way you drew out the pragmatic consequences of stifling the First Amendment was top notch, but then, THEN you delved into the Sixth Amendment and succinctly covered such American principles as innocent until proven guilty, and "better to let a guilty man free then send an innocent to prison."

This is a blog post, not a legal review journal. Sorry it didn't live up to your expectations.

Who's right is more important

This person could be innocent and their life could be ruined very easily from this kind of stuff.

Personally, I think a defensive right is greater than an offensive right. Why should should someone else have a right to mess up someone's life for no reason other than being a suspect?

I have a personal example of something similar.

My brother, who was still in highschool, was featured on the news. The news mentioned him threatening to bring a gun to school and to harm another student and how my brother has gotten into trouble before. They showed him in his orange jump suit shackled in court and he was big news. He sounded like some horrible person.

The news is very bad an relaying facts and will mess up the public opinion about a person.

Here's what actually happened. My brother, who has high honors at his school, was being verbally and physically harassed by another student for over two years. My brother finally hit a breaking point and sent an email stating that this harassment is against the law and he will press charges against the school if they don't fix this as he confronted the principal about this student numerous times and they have done nothing. He also stated that he has a right to defend himself and he would exercise this right if this other student hits him again.

Well, the school called the cops because my brother "threatened" to defend himself from being punched from another student.

Well, the news got a hold of this and tossed in a few things like a gun...blah blah blah.. and some other crap. My brother has never shot a gun and knows no one who has a gun.

Well, my brother is well loved by many parents in the town and over two hundred parents showed up to a local meeting to chew the principal a new hole.

anyway, my brother still got expelled and the principal said he expelled my brother because my brother was unsafe at school because of this other student.. they didn't expel the other student for harassing my brother, they expelled my brother to protect him from harassment. WTF?!

Well, the news never re-covered the story even after my mom called them up to tell them that they got near everything wrong and they'd better stop slandering my brother's name. No apology, but they pulled their news story VERY fast.

Damage was already done and lots of people were asking about my brother and they already had a negative bias against him.

Luckily lots of people know him where he lives and no one believed the bull the news was talking about.

First Amendment my ass. Wait for the facts before you get personal with the "accused". Bias WILL happen.

A couple more points.

3) The LA Times is a corporation wishing to run the photograph to improve their profits. At some point, corporate privileges to make a buck end; I say this is that point because a photograph is unnecessary to publishing *facts*; the photograph is solely prejudicial.

4) I see a rather dangerous tendency here to majority rule over individual rights. The Constitution is entirely concerned with the latter, and this instance is again a good place to draw a line in favor of individual rights. You already know the name charged: why this *demand* to see a photograph of him in a demeaning orange jumpsuit?

Re: A couple more points.

The photograph is not "solely prejudicial" it is a fact as well. The accused was there, in an orange jumpsuit, when the picture was taken. It is as much of a fact as the name of the accused. It may be prejudicial as well but the publishing it won't create any more prejudice than when the accused is brought in to court for trial in the same orange jumpsuit in front of the jury. The LA Time may be a corporation attempting to make profit off of the photograph but they are also a member of the press which is granted very specific freedoms in the first amendment and the case law surrounding this sort of ban as well as SCOTUS rulings show that this judge has overstepped his authority in this case. Whether you like the freedom or not it exists. Whether the press has a moral obligation regarding the photograph is entirely moot when it comes to the rights enumerated in the constitution.

Secondly you are dead wrong about the constitution being entirely concerned with individual rights. The first amendment is about two individual rights (freedom of religion and speech) and two group rights (freedom of press and assembly). Your arguments here are entirely moral and irrelevant to the law of the land. Past cases show the judge is beyond his authority in banning the publishing of this photo. No matter how much it sucks no matter how immoral it may be they press has a right to publish the photo that is laid out clearly and has been upheld by the courts over and over again. Your moral arguments may well hold water but the law is not concerned with morality in cases like this. And yes in cases like this the group right of freedom of the press does trump any right to privacy the accused may have once the press has a picture or a story. You may not like. It might not even be morally right but that's the way it is and restricting the press is not an option if we want to continue living in a free country.

Re: Who's right is more important

If the press lied about the charges against your brother then a libel suit would be in order. That's where the checks and balances lie in these situations. A libel suit can force a retraction as well as provide monetary damages. Limiting the press isn't an option. The dangers of a free press, as you have illustrated with your anecdote, are outweighed by the dangers of not having a free press. What happened to your brother sucked but there was legal recourse that could have been taken if what you say is true and I have my doubts about that but there is no reason to go into those doubts. I'll just assume that you are not making it up. If the press lied about your brother mentioning a gun then there is legal recourse if they reported the facts then there isn't.

makes sense, with todays instant story blogger world, everyone is guilty, 1 million percent, then at court when they are found not guilty, no one knows, no one cares, no one really gets a fair trial anymore

Did anyone notice

That the real thing that happened was that the current judge in the proceedings erroneously allowed the photographer to begin taking the photos in dispute?

A previous judge had granted an order baring photos. The current judge's feeling was that photography was okay. He granted the request by the Times for photography (I suspect that the photographer was aware of the order, but that's another story).

After some photos were taken, the fellows defense attorney reminded the current judge of the prior order, and the current judge ordered a halt and hold on the photos.

So the photos were in fact illegal (not due to actions of the photographer, but because of improper procedure).

He should have found that the prior order was to be rescinded after a hearing and then allowed (or not) the photos to be taken.

No nefarious prior restraint, or any of the crap thrown up by the Times.

I find that the current thread and posting have totally missed the point of this, and have been misled by the Times.

I am pained in that I'm totally on the side of the rights of the press, but it has to be done by the law, not by some specious maneuver to get something they clearly are not entitled to.

Pick battles where some intent exists to suppress the press. And the press can't afford these sorts of cluster f**ks if they want to maintain their special status of having access. There are too many entities that do suppress the press and get away with it, and this was not one of them.

If they had taken the time, they could appeal the original order (which they may be doing) and get photos after the fact. This guy will be in the same orange jump suit sometime in the future, and if appropriate they can publish it then. If not, aren't they supposed to be reporters, not shapers of the news and story? If the guy smartens up and requests no more appearances w/o street clothes tough that the current photographer jumped the gun and set off a mess.

Here is an earlier link to the times story with mention of the events.

This is nonsense. What does the photo reveal to a potential juror? That this guy is a defendant in a murder trial. What is every juror going to learn right at the outset of their jury duty on this trial? That the guy is a defendant in a murder trial. If that fact alone is going to prejudice jurors, then it's going to prejudice all twelve jurors no matter what photos are published by whom.